Things Included in a Postnuptial Agreement

By Laura Payet

Things Included in a Postnuptial Agreement

By Laura Payet

A postnuptial agreement is a contract you and your spouse agree to while you're married, establishing how you will divide your marital property and financial interests in the event of divorce or death. It is most useful when one or both of you enter the marriage with a great deal of wealth or property or when one of you acquires substantial property during the marriage. Generally, a postnuptial agreement includes provisions addressing the division of marital property and debts as well as spousal support, or alimony.

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Creating an Enforceable Postnuptial Agreement

Every state has its own laws about postnuptial agreements, so you must ensure your agreement follows the laws of your state. It is often beneficial to include which state's laws govern the document so that the document can remain enforceable if you move to a state with different requirements.

Still, there are certain requirements that are largely universal. Generally, an enforceable postnuptial agreement must be:

  • In writing
  • Signed by both spouses
  • Notarized
  • Entered into voluntarily by both spouses

In addition, the agreement must be basically fair to both spouses. That is, it can't provide that one of you gets everything and the other gets nothing. Furthermore, both you and your spouse must fully disclose to each other your financial situations, including all of your assets and liabilities. Finally, it's best if each of you has the opportunity to review the agreement with their attorney before signing.

Assets, Liabilities, and Spousal Support

The principal reason most people create a postnuptial agreement is to set out how their marital property and debts will be allocated if they divorce or if one spouse passes away. For instance, if you inherited a house from your grandmother before marrying your spouse, your postnuptial agreement can state that you retain that house upon divorce. Conversely, if you entered the marriage with substantial credit card debt, the agreement can provide that you alone are responsible for paying off any of that debt remaining when the marriage ends. If one of you starts a successful business during the marriage, you can specify that the business is to remain yours if you and your spouse split. You can also decide what to do about your house, cars, and investment accounts as well as your mortgage and other debt.

Additionally, a postnuptial agreement can require one spouse to pay ongoing support to the other after a divorce. If, for example, you gave up a successful career to stay home and care for your children, your spouse may agree to pay support to compensate you for the opportunities you gave up or until your children are no longer living at home and you are free to work. Alternatively, you may agree that neither of you will be entitled to support from the other.

Child Custody and Support

In many states, a postnuptial agreement cannot include provisions for child custody after divorce. This is because custody and visitation arrangements for children born during your marriage must comply with the judge's assessment of their best interests at the time you divorce. Even if your state allows these provisions in a postnuptial agreement, the judge will still examine them to be certain they are in your children's best interest before enforcing them.

Similarly, child support arrangements made in a postnuptial agreement are unenforceable in many states. For any such agreement to be enforceable, it must be consistent with the state's legal guidelines specifying the appropriate amount of support. However, if you are responsible for supporting a child from a previous marriage, your agreement could provide that in the event you and your current spouse divorce, these payments remain your responsibility.

If you and your spouse are contemplating a postnuptial agreement, you would be well-advised to consult with an attorney. An online service provider can also help you obtain cost-effective assistance from an experienced attorney.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.